JAMES  WILSON,  PATRIOT, 

AND 

THE  WILSON  DOCTRINE 


BY 

LUCIEN  HUGH  ALEXANDER 

OF  THE  PHILADELPHIA  BAR 


Reprinted  from  THE  NORTH  AMERICAN  REVIEW, 

MID-NOVEMBER  ISSUE,   IQO6  ;  VOL.   183:  NO.  8. 


JAMES  WILSON,  PATRIOT,  AND  THE 
WILSON  DOCTRINE. 

BY  LDCIEN   HUGH  ALEXANDER  OF  THE  PHILADELPHIA  BAR. 


"  1  cannot  do  better  than  base  my  theory  of  governmental  action  upon 
the  words  and  deeds  of  one  of  Pennsylvania's  greatest  sons,  Justice 
James  Wilson." — PRESIDENT  ROOSEVELT. 

WITH  these  words  Theodore  Roosevelt,  in  a  recent  oration,* 
focussed  public  attention  upon  James  Wilson,  who  through  the 
vista  of  the  nineteenth  century  is  looming  the  intellectual  colos 
sus  of  the  formative  years  of  the  Republic,  and  whose  principles 
must  eventually  be  the  basis  for  the  solution  of  those  subtle 
constitutional  problems  which  result  from  our  closely  inter 
locked  dual  form  of  government.  To  many  in  our  day,  James 
Wilson  will  prove  a  revelation;  to  others,  to  an  unnumbered 
throng  ever  increasing  with  the  oncoming  years,  his  governmental 
theories  will  be  a  never-failing  source  of  inspiration ;  and  to  the 
nation  the  Wilson  doctrine  is  the  harbinger,  the  hope  and  the 
salvation  for  untrammelled  forward  progress  in  the  field  of 
destiny. 

The  object  of  these  pages  shall  be  to  place  this  man  in  true 
perspective  before  the  people  whom  he  loved  and  in  whose  service 
he  died.  In  order  to  do  so,  the  writer  will  not  confine  himself 
to  the  enunciation  of  his  personal  views,  lest  in  the  recital  Wil 
son  suffer;  but,  with  "wealth  of  quotation,"  he  will  draw  from 
the  opinions  of  that  little  band  of  constitutional  lawyers  and  his 
torians  who,  in  the  examination  of  the  great  problems  of  gov 
ernmental  action,  are  never  satisfied  until  they  have  mastered 
the  principles  and  sought  the  sources,  and  who,  in  seeking,  found 
— James  Wilson,  luminous,  transcendant,  constitution-maker, 
nation-builder;  the  intellectual  giant,  in  whose  train  have  fol- 
*  Dedication  of  Pennsylvania's  new  Capitol,  October  4th,  1906. 


2  THE  NORTH  AMERICAN  REVIEW. 

lowed  that  great  galaxy  of  constitution  interpreters — Hamilton, 
Jay,  Webster,  Bradley,  Taney  and,  peer  of  all,  John  Marshall 
— whose  work  and  whose  names  are  an  immortal  part  of  our  com 
mon  heritage. 

In  juridical  learning,  in  national  patriotism,  in  the  power  to 
make  things  happen,  the  dynamic  intellectual  power,  no  man  of 
the  great  constructive  days  of  the  American  Republic  excelled 
James  Wilson.  He  was  a  member  of  the  Continental  Congress, 
a  signer  of  the  Declaration  of  Independence,  great  leader  in 
the  United  States  Constitutional  Convention  and  a  Justice  of 
the  Supreme  Court  by  appointment  of  Washington  on  the  es 
tablishment  of  that  Court.  More  than  any  one  man  he  made 
the  Declaration  possible  and  practically  effective.  His  vote  made 
it  possible;  for  without  the  prestige  of  Pennsylvania's  vote,  it 
would  probably  have  failed  of  affirmative  action,  and  certainly 
would  have  proved  abortive.  Two  of  the  Pennsylvania  delegates 
(John  Dickinson  and  Robert  Morris)  were  unwilling  to  support 
action  so  radical,  and  declined  to  vote.  Exclusive  of  Wilson,  the 
four  remaining  Pennsylvania  delegates  were  evenly  divided,  and 
Wilson,  untrammelled  by  the  influence  of  the  learned  Dickinson, 
his  preceptor  in  the  law,  and  holding  the  balance  of  power, 
wielded  it  for  the  cause  of  liberty  and  independence.  Further 
more,  he  made  the  Declaration  practically  effective  by  holding 
off  the  vote  until  there  was  substantial  backing  by  the  people, 
thereby  securing  virtual  unanimity  of  endorsement.  This  is 
evidenced  by  an  extraordinary  certificate,  recently  located  by  the 
writer  in  the  National  Archives,'  signed  by  John  Hancock, 
Thomas  Jefferson,  John  Adams,  Edward  Rutledge,  Robert 
Morris,  and  other  members  of  the  Continental  Congress  setting 
forth  Wilson's  attitude  in  the  matter  of  the  Declaration.  In  a 
forty-page  pamphlet,  written  some  years  before  and  published 
to  the  world  twenty-three  months  in  advance  of  the  Declaration 
of  Independence,  and  extensively  circulated  among  the  mem 
bers  of  the  first  Continental  Congress,  he  used  the  phrase  "all 
men  are  by  nature  free  and  equal,"  and  at  the  same  time  he 
enunciated  the  doctrine  that,  by  the  British  constitution,  Par 
liament  possessed  no  legislative  power  over  the  colonies,  sus 
taining  his  argument  with  copious  authority.  Again  in  January, 
1775,  he  was  far  in  advance  of  other  patriots,  asserting  at  Phila 
delphia  in  a  provincial  convention,  in  a  speech  which  will  ever 


JAMES  WILSO\,  1"  AT  RIOT.  8 

stand  as  one  of  the  highest  types  of  American  oratory,  that 
George  III,  "forgetting  his  character  and  dignity,  has  stepped 
forth,  and  openly  avowed  and  taken  part  in  the  iniquitous  con 
duct"  of  his  ministers  and  Parliament,  thereby  violating  the 
British  constitution;  and  lie  proposed  to  the  convention  a  reso 
lution  declaring: 

"  That  the  acts  of  the  British  Parliament  for  altering  the  charter 
and  constitution  of  the  colony  of  Massachusetts  Bay,  .  .  .  for  shutting 
the  port  of  Boston,  and  for  quartering  soldiers  on  the  inhabitants  of 
—\£-  *^e  colonies  are  unconstitutional  and  void.  .  .  .  That  all  force  em 
ployed  to  carry  such  unjust  and  illegal  attempts  into  execution  is  force 
without  authority;  and  that  it  is  the  right  of  British  subjects  to  resist 
such  force;  that  this  right  is  founded  upon  both  the  letter  and  the 
spirit  of  the  British  constitution." 

At  the  outbreak  of  the  Revolution,  he  organized  a  regiment. 
He  later  became  Brigadier-General  and  the  Director-General  of 
the  Pennsylvania  Militia.  In  the  Continental  Congress  he  was 
chairman  of  the  committee  on  "Defence  of  Philadelphia,"  then 
the  seat  of  government,  and  an  active  member  of  the  Board  of 
War.  He  was  also  Advocate-General  for  France  in  America, 
serving  without  pecuniary  compensation. 

It  is  now  conceded  by  those  most  competent  to  pass  judg 
ment  that,  in  the  great  Constitutional  Convention  of  1787,  he 
was  the  most  learned  and  intellectually  the  ablest  of  the  mem 
bers.  His  power  and  influence  were  exceeded  by  the  delegate  of 
no  other  State.  Indeed,  Wilson  made  such  an  impress  upon 
the  Convention  that,  after  it  had  been  in  session  two  months, 
he  was  elected  by  ballot  one  of  the  Committee  of  Five  on  detail, 
to  which  was  intrusted  the  work  of  actually  drafting  the  Con 
stitution,  and  he  is  reputed  to  have  been  the  chairman  of  that 
committee.  In  the  deliberations  of  the  Convention,  his  services 
were  probably  of  more  practical  value  than  those  of  any  other 
delegate.  Madison's  minutes  show  that  in  vital  matters  his  in 
tellect  dominated  the  proceedings.  Contemporaneous  records 
make  clear  that  it  is  no  undue  praise  to  record  that,  without  the 
force,  power  and  tact  of  Wilson  in  the  Constitutional  Convention, 
without  his  persuasive  arguments  and  profound  learning,  no 
agreement  could  have  been  reached  upon  a  federal  Constitution 
which  would  have  been  ratified,  or  which,  if  ratified,  would  have 
stood  the  stress  of  conflict  through  a  score  of  years. 


4  THE  'NORTH  AMERICAN  REVIEW. 

The  key-note  of  Wilson's  entire  career  is  his  unyielding  faith 
in  the  people  as  the  rock  upon  which  of  necessity  a  republic  must 
stand.  His  faith  in  the  people  was  more  practically  sincere,  more 
real,  more  abiding  than  Jefferson's.  He  believed  that  all  sov 
ereignty — the  sovereignty  of  a  nation,  with  all  the  powers  and 
incidents  appertaining  thereto— was  lodged  in  the  people,  the 
people  of  the  nation  collectively,  and  not  in  the  States  qua  States, 
or  in  the  people  as  segregated  into  particular  States. 

His  services  in  the  Constitutional  Convention  cannot  well  be 
overestimated.  Hampton  L.  Carson,  the  Attorney-General  of 
Pennsylvania  and  historian  of  the  Supreme  Court  of  the  United 
States,  refers  to  them  in  part  as  follows: 

"  He  desired  that  the  various  branches  of  the  new  Government 
should  be  thoroughly  independent  of  each  other.  While  willing  to  pre 
serve  the  State  governments  he  sought  to  guard  the  General  Govern 
ment  against  the  encroachments  of  the  States.  .  .  .  He  pointed  out 
the  advantages  of  a  national  government  over  one  purely  federative, 
and  showed  that  the  individuality  ...  of  the  States  was  not  incom 
patible  with  a  general  government.  He  wished  the  executive  to  con 
sist  of  but  one  person,  and  proposed  that  the  President  should  be  chosen 
by  electors  elected  by  the  people.  ...  He  urged  that  senators  as  well 
as  representatives  should  be  chosen  by  the  people.  ...  He  advocated 
a  proportional  representation  of  the  States  in  Congress.  ...  He  desired 
a  provision  that  the  contracts  of  the  Confederation  should  be  fulfilled, 
and  advocated  a  guarantee  to  the  States  of  republican  institutions.  He 
opposed  a  proposition  to  allow  the  States  to  appoint  to  national  offices, 
and  doubted  whether  the  writ  of  habeas  corpus  should  ever  be  suspended. 
He  contended  for  an  absolute  prohibition  upon  the  States  relative  to 
paper  money  and  also  for  a  provision  prohibiting  the  passing  of  laws 
impairing  the  obligation  of  contracts.  ...  He  is  strangely  unknown, 
considering  the  high  position  to  which  he  is  entitled." 

This  is  b»t  a  brief  outline  of  a  few  of  the  great  themes  to 
which  Wilson  addressed  himself  in  the  Convention.  Madison's 
minutes  strikingly  portray  his  invaluable  and  brilliant  services. 

In  Pennsylvania  the  fight  for  the  ratification  of  the  United 
States  Constitution  was  intense,  and  to  Wilson's  herculean  labors 
in  its  behalf,  to  his  oratory,  to  the  power  and  logic  of  his  argu 
ments,  more  than  to  anything  else,  was  the  final  victory  due. 
This  Pennsylvania  contest  was  bitter,  and  Wilson  was  burned 
in  effigy  by  the  anti-federalists.  Had  the  work  of  the  Constitu 
tional  Convention, been  repudiated  by  Pennsylvania,  its  adoption 
by  a  sufficient  number  of  States  could  not  have  been  secured. 


J  1 1"y-" 
f .  -," 

JAMES  WILSON,  PATRIOT.  o 

Curtis,  in  his  "Constitutional  History  of  the  United  States," 
says : 

[Wilson's  Pennsylvania  speech  for  ratification]  "  is  one  of  the  most 
comprehensive  and  luminous  commentaries  on  the  Constitution  that 
has  come  down  to  us  from  that  period.  It  drew  from  Washington  a 
high  encomium,  and  it  gained  the  vote  of  Pennsylvania  for  the  new 
Government  against  the  ingenious  and  captivating  objections  of  his  op 
ponents." 

Bancroft  declares : 

"  But  for  one  thing,  without  doubt,  Pennsylvania  would  have  refused 
to  have  ratified  the  Constitution,  and  that  one  incident  marks  alike 
the  technical  knowledge,  the  comprehensive  grasp  and  force  of  argu 
ment  of  this  great  man." 

Graydon  says  of  him : 

"  He  never  failed  to  throw  the  strongest  light  on  his  subjects,  and 
seemed  rather  to  flash  than  elicit  conviction  syllogistically.  He  pro 
duced  greater  orations  than  any  other  man  I  have  ever  heard." 

Francis  Hopkinson,  on  December  14th,  1787,  wrote  Thomas 
Jefferson,  then  in  Paris : 

"This  [the  new  Constitution]  has  been  the  subject  of  great  debate 
in  our  convention  [the  Pennsylvania  ratifying  convention],  and  perhaps 
the  true  principles  of  government  were  never  upon  any  occasion  more 
fully  and  ably  developed.  Mr.  Wilson  exerted  himself  to  the  astonish 
ment  of  all  hearers.  The  powers  of  Demosthenes  and  Cicero  seem  to 
be  united  in  this  able  orator.  The  principal  speeches  have  been  taken 
in  shorthand." 

James  DeWitt  Andrews,  of  the  New  York  Bar,  pays  him  this 
tribute: 

"  The  correctness  of  his  conclusions  upon  constitutional  matters  may 
be  judged  when  we  find  that  he  not  only  maintained  that  it  was  the 
power  and  the  duty  of  the  courts  to  declare  void  legislative  acts  which 
contravene  the  Constitution,  but  he  also  clearly  explained  that  a  legis 
lative  grant  was  a  contract,  and  also  in  the  same  connection  maintained 
that  the  charter  of  a  corporation  might  in  some  cases  be  a  contract, 
which  view  was  adopted  in  the  Dartmouth  College  case.  Still  more 
remarkable  is  his  argument  upon  the  inherent  powers  of  the  nation, 
which  he  maintained  existed  outside  of  enumerated  powers,  in  cases 
where  the  object  involved  was  entirely  beyond  the  power  of  the  States 
and  was  a  power  ordinarily  possessed  by  sovereign  nations.  Thus  by 
these  arguments  anticipating  the  grounds  taken  by  Judge  Marshall  in 
Fletcher  v.  Peck,  Dartmouth  College  case  and  Marbury  v.  Madison, 
and  also  the  positions  necessarily  taken  in  order  to  arrive  at  the  legal 
conclusions  reached  in  the  legal  tender  causes." 


6  THE  NORTH  AMERICAN  REVIEW. 

Bancroft  remarks: 

"  We  have  all  read  of  the  great  argument  of  Webster,  that  the  Con 
stitution  is  not  a  compact.  Wilson  in  the  Convention  presented  this 
question  thus :  '  This  system  is  not  a  compact.  I  cannot  discern  the 
least  trace  of  a  compact.  The  introduction  to  the  work  is  not  an  un 
meaning  flourish;  the  system  itself  tells  what  it  is,  an  ordinance,  an 
establishment  of  the  people.' " 

In  a  long  and  remarkable  holographic  letter  to  George  Wash 
ington,  dated  December  31st,  1791,  recently  located  in  the 
Washington  Archives,  Wilson  urged  the  importance  of  a  digest 
of  the  laws  of  the  United  States,  which  should  clearly  define 
the  limits  of  State  and  National  rights,  and  he  himself  offered  to 
undertake  the  task.  With  prophetic  vision  he  seemed  to  see  the 
oncoming  Civil  War  and  hoped  to  prevent  it.  In  this  letter  to 
Washington  he  said  (italics  indicate  Wilson's  underscoring)  : 

"  The  most  intricate  and  the  most  delicate  questions  in  our  national 
jurisprudence  will  arise  in  running  the  line  between  the  authority 
of  the  National  Government  and  that  of  the  several  States.  .  .  . 
A  controversy,  happening  between  the  United  States  and  any  par 
ticular  State  in  the  Union,  will  be  viewed  and  agitated,  with  bias 
and  passion,  like  a  question  of  politics.  For  this  reason,  the  prin 
ciples  and  rules  on  which  it  must  be  determined  should  be  clearly  and 
explicitly  known  before  it  arises.  ...  It  is  probable,  therefore,  that  the 
directions  which  the  line  above  mentioned  ought  to  take,  may  be  traced 
with  a  satisfactory  degree  of  clearness  as  well  as  of  precision ;  and  that 
neither  vacancies  nor  interferences  will  be  found,  between  the  limits 
of  the  two  jurisdictions.  For  it  is  material  to  observe,  that  both  juris 
dictions  together  compose  or  ought  to  compose  only  one  uniform  and 
comprehensive  system  of  government  and  laws." 

Had  Wilson  been  selected  to  undertake  the  work  he  outlined 
to  Washington,  who  shall  say  but  that  the  great  Civil  War  might 
have  been  avoided  ?  For  it  is  possible  that,  had  the  line  between 
State  and  National  powers  been  run,  clearly  and  forcefully,  as 
Wilson  would  have  run  it,  "before"- — as  Wilson  put  it — "be 
fore  a  controversy  happening  between  the  United  States  and  any 
particular  State  in  the  Union"  had  been  "agitated  with  bias 
and  passion,"  the  great  issue  would  never  have  reached  such  a 
crisis  that  only  the  arbitrament  of  shot  and  shell  and  a 
nation's  blood  could  settle  it.  It  would  have  cut  from  under 
the  feet  of  Calhoun  and  his  followers  the  very  ground  upon 
which  they  relied  for  popular  support.  Listen  to  the  words  of 
Professor  A.  C.  McLaughlin,  formerly  of  Harvard  and  the  Car- 


JAMES  WIL80S,  I' AT  RIOT.  1 

negie  Institution,  now  at  Ann  Arbor.  He  quotes,  from  Madison's 
minutes  of  the  Constitutional  Convention,  a  paragraph  from  the 
notes  on  Wilson's  speech  of  June  25th,  1787,  in  favor  of  the 
election  of  United  States  senators  by  direct  vote  of  the  people, 
to  wit : 

"  He  [Wilson]  was  opposed  to  an  election  by  the  State  legislatures. 
In  explaining  his  reasons,  it  was  necessary  to  observe  the  twofold  re 
lations  in  which  the  people  would  stand, — first,  as  citizens  of  the  General 
Government,  and,  secondly,  as  citizens  of  their  particular  State.  The 
General  Government  was  meant  for  them  in  the  first  capacity;  the  State 
governments  in  the  second.  Both  governments  were  derived  from  the 
people,  both  meant  for  the  people;  both,  therefore,  ought  to  be  regulated 
on  the  same  principles.  .  .  .  The  General  Government  is  not  an  assem 
blage  of  States,  but  of  individuals,  for  certain  political  purposes;  it  is 
not  meant  for  the  States,  but  for  the  individuals  composing  them.  The 
individuals,  therefore,  not  the  States,  ought  to  be  represented  in  it." 

Professor  Mclaughlin  comments  as  follows:* 

"  Wilson  in  these  sentences  gave  the  fundamental  idea  of  the  federal 
State;  and  because  it  was  he  who  did  present  these  thoughts  so  con 
spicuously,  he  deserves  unstinted  praise.  This  double  allegiance  and 
double  obedience  owed  by  each  citizen  to  two  governments,  each  distinct 
from  the  other,  and  each  supreme  in  its  own  field,  is  the  most  striking 
and  the  most  important  feature  of  the  political  organization  of  our 
country.  ...  It  represents  the  greatest  of  our  achievements  in  state 
craft.  It  is  wonderful  that  Wilson  should  have  grasped  this  principle 
so  firmly  and  insisted  on  it  so  strenuously,  when  the  men  around  him 
were  striving  eagerly  for  some  local  advantage  or,  if  wise  and  generous, 
were  too  often  lost  in  the  contemplation  of  the  mere  mechanism  of 
government.  Seventy  years  later,  at  another  fateful  period  in  our  his 
tory,  statesmen  saw  but  dimly  this  great  fundamental  fact  in  our 
political  system.  James  Buchanan  and  Jeremiah  S.  Black,  wrestling 
in  agony  of  spirit  with  the  problems  of  secession,  begat  together  the 
mysteries  of  that  wonderful  message,  which  declared  that  secession  was 
illegal,  but  that  there  was  no  legal  means  to  prevent  it,  because  the 
National  Government  could  not  coerce  a  State.  They  apparently  did 
not  comprehend  these  elementary  facts  which  Wilson  so  clearly  stated." 

Although  Wilson  is  strangely  unknown,  even  to  intelligent 
educated  Americans,  constitutional  historians  have  at  last  begun 
to  realize  his  place  as  nation-builder. 

John  Bach  McMaster  recently  declared: 

"  I  believe  Wilson  to  be  the  most  learned  lawyer  of  his  time.  As  a 
statesman,  he  was  ahead  of  his  generation  in  foresight.  Afony  of  the 

'"James  Wilson  and  the  Constitution,"  Polt.  Sc.  Qr.,  March,  1897. 
VOL.  CLXXXIII. — NO.  603.  62 


8  THE  NORTH  AMERICAN  REVIEW. 

great  principles  of  government  advocated  by  him,  we,  as  a  nation,  are 
only  beginning  to  apply." 

James  Bryce,  in  his  "American  Commonwealth,"  speaks  of 
"the  acuteness  of  James  Wilson,"  and  declares  him  to  have  been 
"one  of  the  deepest  thinkers  and  most  exact  reasoners  among 
the  members  of  the  Convention  of  1787."  He  also  says  of  him: 

"  The  speeches  of  the  latter  in  the  Pennsylvania  ratifying  convention, 
as  well  as  in  the  great  Convention  of  1787,  display  an  amplitude  and 
profundity  of  view  in  matters  of  constitutional  theory  which  place  him 
in  the  front  rank  of  the  political  thinkers  of  his  age." 

Commenting  on  Wilson's  law  lectures,  James  DeWitt  An 
drews,  long  the  chairman  of  the  American  Bar  Association's 
Committee  on  Classification  of  the  Law,  and  the  editor  of  the  last 

edition*  of  Wilson's  Works,  remarks: 
f— 

"  Would  you  trace  the  history  of  popular  governments,  you  will  find 
the  whole  outline  traced  by  the  master  hand  of  Wilson  in  these  lectures, 
prepared  especially  to  instruct  the  American  student  as  to  the  difference 
between  the  institutions  which  had  before  existed,  and  the  political  sys 
tem  of  law  and  government  which  exists  in  the  United  States.  ...  In 
one  respect  Wilson's  works  are  remarkable.  It  is  in  this:  each  funda 
mental  principle  is  in  every  instance  traced  to  its  source,  whether  it 
shall  be  a  principle  enunciated  by  Socrates,  Aristotle,  Cicero,  Gaius, 
Puffendorf,  Locke,  Grotius  or  Hobbes,  Descartes  or  Hume,  Vattal  or 
Domat,  who  may  have  written  upon  some  proposition  or  problem  of  the 
law  or  government.  Little  of  value  seems  to  have  escaped  the  examina 
tion  of  our  author,  and  the  number  of  references  to  classical  jurists, 
philosophers,  politicians  or  historians  who  have  written  upon  subjects 
connected  with  jurisprudence  is  remarkable." 

Andrews  also  says : 

"  The  address  upon  the  powers  of  the  British  Parliament  stands  un 
equalled  by  anything  upon  the  same  subject,  and  the  argument  upon 
the  Bank  of  North  America  stands  as  a  constitutional  exposition  second 
to  no  constitutional  argument  or  opinion  delivered  before  or  since. 
Indeed  it  not  only  embraced  every  ground  of  argument  which  Marshall 
was  called  upon  to  treat,  but  it  assumed  and  defined  precisely  the 
position  which  was  necessarily  taken  in  the  Legal  Tender  decisions." 

Bryce  pays  Wilson  the  tribute  of  being  the  first  statesman, 
British  or  American,  to  have  an  adequate  comprehension  of  the 
powers  and  limitations  of  the  British  system  of  government. 
Keferring  to  one  phase  of  it,  he  declares : 

•  Published  at  Chicago  in  1896.  The  first  edition  was  issued  .at  Phila 
delphia  in  1804,  in  three  handsome  volumes,  with  engraving  of  the 
author,  and  under  the  direction  of  Bird  Wilson. 


JAMES  WILSOff,  PATRIOT.  9 

"  The  first  statesman  who  remarked  this  seems  to  have  been  James 
Wilson,  who  said  in  1787:  'The  idea  of  a  constitution  limiting  and 
superintending  the  operations  of  legislative  authority,  seems  not  to  have  . 
been  accurately  understood  in  Britain.  There  are  at  least  no  traces 
of  practice  comformable  to  such  a  principle.  The  British  Constitution 
is  just  what  the  British  Parliament  pleases.  When  the  Parliament 
transferred  legislative  authority  to  Henry  VIII,  the  act  transferring  it 
could  not,  in  the  strict  acceptation  of  the  term,  be  called  unconstitu 
tional.'  " 

Again,   referring   to   the   United   States    Constitution,   Bryce 

says: 

"  Such  novelty  as  there  is  belongs  to  the  scheme  of  a  supreme  or 
rigid  Constitution,  reserving  the  ultimate  power  to  the  people,  and 
limiting  in  the  same  measure  the  power  of  a  legislature.  .  .  .  This  was 
clearly  stated  by  James  Wilson  of  Pennsylvania,  one  of  the  deepest 
thinkers  and  most  exact  reasoners  among  the  members  of  the  Con 
vention  of  1787.  Speaking  of  the  State  constitutions,  he  remarked  in 
the  Pennsylvania  Convention  of  17.S7:  'Perhaps  some  politician  who 
has  not  considered  with  sufficient  accuracy  our  political  systems  would 
observe  that  in  our  governments  the  supreme  power  was  vested  in  the 
constitutions.  This  opinion  approaches  the  truth,  but  does  not  reach 
it.  The  truth  is  that,  in  our  governments,  the  supreme,  absolute  and 
uncontrollable  power  remains  in  the  people.  As  our  constitutions  are? 
superior  to  our  legislatures,  so  the  people  are  superior  to  our  constitu-J 
tions."  " 

Bancroft  brings  out  clearly  Wilson's  grasp  of  the  fact  that, 
under  the  American  Constitution,  all  sovereignty  remains  in  the 
people.  He  records : 

"  The  fiercest  day's  debate  in  Pennsylvania  was  upon  the  omission 
in  the  federtil  Constitution  of  a  Bill  of  Rights.  Wilson,  rising  to  prove 
that  there  was  no  need  of  >i  Kill  of  Rights,  said:  'The  boasted  Magna 
Charta  of  England  derives  liberties  of  the  inhabitants  of  that  kingdom 
from  the  gift  and  grant  of  the  king,  and  no  wonder  the  people  were 
an.xious  to  obtain  Bills  of  Rights;  but  here  the  fee-simple  remains  in 
the  people,  und  by  this  Constitution  they  do  not  part  with  it.  The 
preamble  to  the  proposed  Constitution,  "  We,  the  people  of  the  United 
State*,  rfo  establixh."  contains  the  essence  of  all  the  Bills  of  Rights  that 
have  been  or  can  be  devised.'  " 

Vice-Chancellor  Emery  of  New  Jersey  recently  said: 

"  If  Wilson  performed  no  other  service  to  the  nation,  he  deserves  our 
unending  gratitude  for  introducing  into  the  nomenclature  of  constitu 
tional  law  the  phrase  'obligation  of  contracts,"  and  securing  the  adop 
tion  of  the  form  of  constitutional  mandate,  '  No  State  shall  pass  any 
law  impairing  the  obligation  of  contracts.'  " 


10  THE  NORTH  AMERICAN  REVIEW. 

Of  Wilson.,  former  president  of  the  American  Bar  Association 
Simeon  E.  Baldwin,  Justice  of  the  Supreme  Court  of  Connec 
ticut  and  professor  in  the  Yale  Law  School,  writes : 

"  He  was  the  real  founder  of  what  is  distinctive  in  our  American 
jurisprudence,  and  his  arguments  for  the  reasonableness  and  practica 
bility  of  international  arbitration  were  a  century  ahead  of  his  time." 

His  views  on  international  law,  remonstrance,  intervention, 
mediation  and  arbitration,  are  profound,  and,  though  set  forth 
more  than  a  century  ago  in  his  published  works,  we  are  but 
barely  coming  abreast  of  them.  For  international  arbitration. 
Wilson  argued  thus : 

"  Individuals  unite  in  civil  society  and  institute  Judges  with  au 
thority  to  decide,  and  with  authority  also  to  carry  their  decisions  into 
full  and  adequate  execution,  that  Justice  may  be  done  and  war  may  be 
prevented.  Are  states  too  wise  or  too  proud  to  receive  a  lesson  from 
individuals?  Is  the  idea  of  a  common  Judge  between  nations  less  ad 
mirable  than  that  of  a  common  Judge  between  men?  If  admissible 
in  idea,  would  it  not  be  desirable  to  have  an  opportunity  of  trying 
whether  the  idea  may  not  be  reduced  to  practice?" 

Wilson  was  profoundly  learned  in  the  Eoman  or  Civil  Law, 
and  concerning  his  argument  for  international  arbitration,  An 
drews  remarks: 

"  He  refers  to  the  sentiments  expressed  in  the  Alcoran ;  to  the  ex 
ample  of  the  Amphictyony;  to  the  Lacedscmonian  arbitration  between 
Megara  and  Athens;  to  the  offer  of  the  Romans  to  arbitrate;  and  lastly 
to  ...  the  words  of  Thucydides,  where  he  says:  '  It  is  cruel  and  de- 
destable  to  treat  him  as  an  enemy  who  is  willing  to  submit  his  case 
to  an  arbitration.' " 

Speaking  of  the  United  States  Constitutional  Convention, 
John  Marshall  Harlan,  now  the  senior  Justice  of  the  Supreme 
Court  of  the  United  States,  in  1900,  said  of  Wilson:* 

"  He  was  recognized  as  the  most  learned  member  of  that  notable  body. 
Webster  said  that  Justice  was  the  great  interest  of  man  on  earth.  Of 
Justice,  as  illustrated  by  the  science  of  the  law,  Wilson  had  been  an 
earnest  devotee  from  his  early  manhood.  In  the  highest  and  best  sense 
he  was  a  great  lawyer.  Still  more,  he  had  become  a  master  in  the 
science  of  government.  He  was  therefore  preeminently  qualified  to  take 
part  in  laying  the  foundations  of  institutions  under  which  the  rights 
of  man  would  be  secure  against  the  assaults  of  power.  What  a  privilege 
it  was  to  look  upon  that  convention  of  patriots  and  statesmen — the 
wisest  assemblage  of  public  servants  that  ever  convened  at  any  time  in 
the  history  of  the  world — no  one  of  them  wiser  than  James  Wilson." 

•"James  Wilson  and  the  Formation  of  the  Constitution."  Amir.  Law  Ktnfw 
Aug.-Sept.,1900. 


JAMES  WILSON,  PATRIOT.  11 

Chisholm  versus  Georgia,  the  first  of  the  great  constitutional 
cases  to  arise  in  the  Supreme  Court  of  the  United  States — the 
only  one  while  Wilson  was  a  Justice  of  it — exemplifies  his  grasp 
upon  fundamental  principles.  Of  the  all-potent  decision  in  that 
case,  Judge  Cooley,  in  his  lectures  on  American  Constitutional 
History,  says : 

"  Justice  Wilson,  the  ablest  and  most  learned  of  the  associates,  took 
the  national  view  and  was  supported  by  two  others.  .  .  .  The  Union 
could  scarcely  have  had  a  valuable  existence  had  it  been  judicially  de 
termined  that  the  powers  of  sovereignty  were  exclusively  in  the  States 
or  in  the  people  of  the  States  severally.  Neither  is  it  important  that 
we  proceed  to  demonstrate  that  the  doctrine  of  an  indissoluble  union, 
though  not  in  terms  declared,  is  nevertheless  in  its  elements,  at  least, 
contained  in  that  decision.  The  qualified  sovereignty,  National  and  State, 
the  subordination  of  State  to  Nation,  the  position  of  the  citizen  as  at 
once  a  necessary  component  part  of  the  federal  and  of  the  State  sys 
tem,  are  all  exhibited." 

"The  Xation,"  in  1896,*  in  reviewing  the  Andrews  edition 
of  Wilson's  Works,  referred  to  this  great  decision,  and  said : 

"  The  sovereignty  of  the  Union  had  been  recognized,  the  idea  of  the 
State  as  a  subordinate  political  agency  had  been  formulated — views  to 
be  wholly  lost  sight  of,  and  to  be  vindicated  two  generations  later  by 
force  of  arms  in  a  conflict  which  ended  in  their  complete  triumph.  One 
of  the  earliest  heralds  of  the  true  constitutional  meaning  and  scope  of 
that  great  conflict  seems  to  have  been  Wilson.  The  opinion  in  Chisholm  '- 
vs.  the  State  of  Georgia  is  really  his  best  monument.  ...  [It  is]  that  of 
an  orator,  a  publicist,  a  scholar  and  a.  metaphysician,  dissatisfied  with 
himself  unless  he  could  show  that  the  decision  he  had  reached  was  called 
for,  not  merely  by  the  Constitution,  but  by  all  history,  all  law,  and 
finally  by  all  philosophy." 

J.  0.  Pierce,  in  an  article f  characterizing  Wilson  as  the  "Pio 
neer  of  American  Jurisprudence,"  said  of  this  decision: 

"  On  the  foundation  of  this  decision  rests  the  governmental  fabric  of 
the  United  States.  .  .  .  Wilson  set  to  himself  the  task  of  answering""1 
the  question,  '  Do  the  people  of  the  United  States  form  a  nation?'  This 
question  is  illustrated  by  copious  classical,  historical  and  juridical  ref 
erences,  presented  with  the  vivacity  of  an  earnest  debater,  the  answer 
constituting  a  thesis  in  which  the  broad  observations  of  a  scholar,  the 
close  analysis  of  a  jurist,  and  the  profound  researches  of  a  philosopher 
are  happily  united.  .  .  .  His  distinctions  between  statehood  and  sov 
ereignty,  his  terse  assertions  of  the  sovereignty  of  the  people,  his  illus- 

•  Vol.  LXII,  p.  494. 

t  The  Dial,  Vol.  XX,  p.  236. 


12  THE  NORTH  AMERICAN  REVIEW. 

trations  of  the  inherent  characteristics  and  the  high  honor  of  tha.t 
sovereignty,  and  his  close  analysis  of  all  the  governmental  questions  in 
volved  in  the  American  system,  might  to-day  be  well  taken  as  a  text 
book  by  the  student  of  our  institutions." 

Pierce  also,  with  rare  and  brilliant  insight,  remarks  of  Wilson : 
"  But  not  in  his  generation  could  a  just  discrimination  assign  to  his 
labors,  or  to  those  of  his  colaborers,  their  relative  or  comparative  value 
or  importance.  Who  could  then  have  foreseen,  for  instance,  the  sub 
sequent  decision  in  the  Dartmouth  College  case,  to  be  followed  by  a 
long  train  of  adjudications  establishing  corporate  rights  under  charters? 
Who  could  then  have  anticipated  the  desirability  of  ascertaining  and 
locating  the  earliest  assertion  of  the  constitutional  principle  that  a 
legislative  contract  is  protected  against  legislative  encroachment?  Who 
could  have  foreseen  the  judicial  career  of  a  Marshall,  or  have  believed 
possible  a  civil  war  between  the  adherents  of  Webster's  constitutional 
views  and  the  partisans  of  Calhounism  ?  The  great  creative  work  of  Wil 
son  as  a  constitutional  jurist  could  scarcely  have  been  assigned  its  true 
position  in  our  juridical  edifice  at  any  time  prior  to  the  late  war." 

Such  are  a  few  of  the  encomiums  paid  Wilson  by  those  who 
are  beginning  to  realize  the  transcendent  value  of  his  work.* 
Yet  this  man,  popularly  so  little  known  and  to  whom  the 
American  people  owe  so  much,  lies  buried  in  a  distant  State, 
where  he  died  one  hundred  and  eight  years  ago,  far  from  kith 
and  kin,  and  in  a  grave  whose  headstone  even  has  no  name  on  it. 

Little  wonder  is  it  that  James  Bryce  exclaimed  in  his  Amer 
ican  masterpiece:  "Wilson  is  one  of  the  luminaries  of  the  time 
to  whom  subsequent  generations  of  Americans  have  failed  to  do 
full  justice." 

Now  a  change  has  come,  and  near  the  Ides  of  November  the 
remains  of  this  great  man  will  be  tenderly  removed  by  the  Gov 
ernor  and  people  of  Pennsylvania  to  rest  at  the  side  of  his  wife 
in  old  Christ  Church  burial-ground,  Philadelphia,  not  far  from 
the  tomb  of  Benjamin  Franklin  and  other  patriots. 

"At  last,"  as  said  Joseph  H.  Choate  the  other  day,  "at  last 
the  nation  is  beginning  to  appreciate  Wilson."  The  United 
States  Government  will  convey  the  remains  to  Philadelphia  on 
an  armored  cruiser  of  the  Navy.  On  arrival,  they  will  be  re 
ceived  with  the  highest  civic  and  military  honors,  and  escorted 
to  Independence  Hall,  where  for  twenty-four  hours  they  will 

*  See  illuminating  sketch  by  Frank  Gay  lord  Cook,  Atlantic  Monthly, 
September,  1889;  also  1906,  annual  address  before  Pa.  Hist.  Soc.  by 
Burton  Alva  Konkle,  the  historian,  the  most  comprehensive  and  only 
complete  biographic  outline  so  far  attempted  (not  yet  in  print). 


JAMES  WILSON,  PATRIOT.  13 

lie  in  state  at  the  scene  of  his  greatest  triumphs,  in  the  sacred 
spot  where  he  successfully  battled  for  the  Declaration  of  Inde 
pendence,  where  he  bore  so  valiant  a  part  in  the  mighty  intellec 
tual  and  victorious  struggle  of  1787  to  make  the  American  colo 
nies  a  nation,  and  where  he  also  sat  as  the  first  great  Justice  of 
the  Supreme  Court  of  the  United  States,  breathing  the  breath 
of  national  life  into  the  Constitution.  At  his  bier,  to  do  him 
honor  and  voice  their  tributes,  will  gather  high  Federal  and  State 
officials,  the  Supreme  Court  of  the  United  States,  representatives 
of  the  Congress,  and  the  Attorney-General  of  the  United  States  by 
express  delegation  of  the  President  to  speak  for  the  executive 
department  of  the  Government.  Thus  will  the  last  of  the 
"fathers  of  the  Republic,"  whose  ashes  have  as  yet  found  but 
temporary  sepulchre,  be  laid  to  rest. 

Yet  in  one  sense  Wilson  is  not  dead.  His  spirit  like  the  fires 
of  eternal  Truth  can  never  die.  It  is  stronger  and  more  power 
ful  than  a  century  ago,  by  force  of  the  great  principles  he  enun 
ciated,  and  which  have  gained  stability  with  the  advance  of  liberty 
and  the  growth  of  republican  institutions  the  world  over.  It  is 
not  so  much  as  statesman  but  as  jurist  Wilson  now  lives 
with  us.  As  statesman,  his  work  for  America  ended  with  the 
adoption  of  the  Constitution  and  birth  of  the  nation.  They 
stand  as  an  imperishable  monument  to  what  he  and  the  fathers 
did  as  warriors  and  statesmen. 

The  true  value  of  Wilson  is  not  in  the  glory  of  p:ist  achieve 
ment,  but  in  the  fact  that  his  doctrine  of  constitutional  interpre 
tation  is  big  with  possibilities  for  the  future,  and  potent  to 
prove  the  solvent  for  every  constitutional  problem  involved  in 
the  delicate  questions  resulting  from  State  individuality  and 
National  sovereignty.  His  doctrine  has  stood  immovable  through 
the  storm  and  stress  of  civil  war,  binding  together  the  founda 
tions  of  the  Federal  Government  as  they  tottered  ;  and  in  times  of 
peace  it  proved  the  guide  for  executive  action  by  Washington 
and  Jackson,  and  for  judicial  interpretntion  by  John  Marshall. 

"  'Tis  the  set  of  the  soul 
That  decides  the  goal, 
And  not  the  calm  or  the  strife." 

And  now  it  is  President  Roosevelt  who  embodies  the  spirit  of 
the  Wilson  doctrine.  In  his  last  notable  public  utterance,  he 
declared : 


14  THE  NORTH  AMER1CAX  REVIEW. 

"  1  cannot  do  better  than  base  my  theory  of  governmental  action 
upon  the  words  and  deeds  of  one  of  Pennsylvania's  greatest  sons,  Justice 
James  Wilson.  Wilson's  career  has  been  singularly  overlooked  for  many 
years,  but  I  believe  that  more  and  more  it  is  now  being  adequately  ap 
preciated.  ...  He  was  a  signer  of  the  Declaration  of  Independence.  He 
was  one  of  the  men  who  saw  that  the  Revolution,  in  which  he  had 
served  as  a  soldier,  would  be  utterly  fruitless  unless  it  was  followed  by 
a  close  and  permanent  union  of  the  States;  and  in  the  Constitutional 
Convention,  and  in  securing  the  adoption  of  the  Constitution  and  ex 
pounding  what  it  meant,  he  rendered  services  even  greater  than  he  ren 
dered  as  a  member  of  the  Continental  Congress,  which  declared  our 
independence;  for  it  was  the  success  of  the  makers  and  preservers  of 
the  Union  which  justified  our  independence. 

"He  believed  in  the  people  with  the  faith  of  Abraham  Lincoln;  and, 
coupled  with  his  faith  in  the  people,  he  had  what  most  of  the  men  who 
in  his  generation  believed  in  the  people  did  not  have  —  that  is,  the 
courage  to  recognize  the  fact  that  faith  in  the  people  amounted  to 
nothing  unless  the  representatives  of  the  people  assembled  together  in 
the  National  Government  were  given  full  and  complete  power  to  work 
on  behalf  of  the  people.  He  developed  even  before  Marshall  the  doctrine 
(absolutely  essential  not  merely  to  the  efficiency  but  to  the  existence 
of  this  nation)  that  an  inherent  power  rested  in  the  nation,  outside 


of  the  enumerated  powers  conferred  upon  it  by  the  Constitution,  in 
all  cases  where  the  object  involved  was  beyond  the  power  of  the  several 
Stales  and  was  a  power  ordinarily  exercised  by  sovereign  nations. 


"  In  a  remarkable  letter  in  which  he  advocated  setting  forth  in  early 
and  clear  fashion  the  powers  of  the  National  Government,  he  laid  down 
the  proposition  that  it  should  be  made  clear  that  there  were  neither 
vacancies  nor  interferences  between  the  limits  of  State  and  National 
jurisdictions,  and  that  both  jurisdictions  together  composed  only  one 
uniform  and  comprehensive  system  of  government  and  laws;  that  is, 
whenever  the  States  cannot  act,  because  the  need  to  be  met  is  not  one 
of  merely  a  single  locality,  then  the  National  Government,  representing 
all  the  people,  should  have  complete  power  to  act.  It  was  in  the  spirit 
of  Wilson  that  Washington,  and  Washington's  lieutenant,  Hamilton, 
acted;  and  it  was  in  the  same  spirit  that  Marshall  construed  the  law." 

And  here  the  President  applies  the  Wilson  doctrine  to  the  vital 
issue  of  our  day. 

"  It  is  only  by  acting  in  this  spirit  that  the  national  judges,  legisla 
tors,  and  executives  can  give  a  satisfactory  solution  of  the  great  ques 
tion  of  the  present  day — the  question  of  providing  on  behalf  of  the 
sovereign  people  the  means  which  will  enable  the  people  in  effective 
form  to  assert  their  sovereignty  over  the  immense  corporations  of  the 
day.  Certain  judicial  decisions  have  done  just  what  Wilson  feared; 
they  have,  as  a  matter  of  fact,  left  vacancies,  left  blanks  between  the 
limits  of  possible  State  jurisdiction  and  the  limits  of  actual  National 
jurisdiction  over  the  control  of  the  great  business  corporations.  It  is 


JAMES  WILSOX,  PATRIOT.  15 

the  narrow  construction  of  the  powers  of  the  National  Government 
which  in  our  democracy  has  proved  the  chief  means  of  limiting  the 
national  power  to  cut  out  abuses,  and  which  is  now  the  chief  bulwark 
of  those  great  moneyed  interests  which  oppose  and  dread  any  attempt 
to  place  them  under  efficient  governmental  control. 

"  Many  legislative  actions  and  many  judicial  decisions,  which  1  am 
confident  time  will  show  to  have  been  erroneous  and  a  damage  to  the 
country,  would  have  been  avoided  if  our  legislators  and  jurists  had 
approached  the  matter  of  enacting  ami  construing  the  laws  of  the  land 
in  the  spirit  of  your  great  Pennsylvanian,  Justice  Wilson — in  the  spirit 
of  Marshall  and  of  Washington.  Such  decisions  put  us  at  a  great  dis 
advantage  in  the  battle  for  industrial  order  as  against  the  present  in 
dustrial  chaos.  If  we  interpret  tke  Constitution  in  narrow  instead  of 
broad  fashion,  if  we  forsake  the  principles  of  Washington,  Marshall.  Wil 
son  and  Hamilton,  we  as  a  people  will  render  ourselves  impotent  to  deal 
with  any  abuses  which  ma}'  be  committed  by  the  men  who  have  accumu 
lated  the  enormous  fortunes  of  to-day,  and  who  use  these  fortunes  in  still 
vaster  corporate  form  in  business. 

"  The  legislative  or  judicial  actions  and  decisions  of  which  I  complain, 
be  it  remembered,  do  not  really  leave  to  the  States  power  to  deal  with 
corporate  wealth  in  business.  Actual  experience  has  shown  that  the 
States  are  wholly  powerless  to  deal  with  this  subject;  and  any  action 
or  decision  that  deprives  the  nation  of  the  power  to  deal  with  it, 
simply  results  in  leaving  the  corporations  absolutely  free  to  work  with 
out  any  effective  supervision  whatever;  and  such  a  course  is  fraught 
with  untold  danger  to  the  future  of  our  whole  system  of  government, 
and,  indeed,  to  our  whole  civilization." 

This,  the  President's  clarion  call  back  to  the  doctrines  of 
James  Wilson  and  the  other  federalist  fathers,  should  prove 
epoch-making.  The  basic  principles  of  these  doctrines  Wilson  "* 
enunciated  before  even  a  single  one  of  the  Federalist  papers  had 
been  written,  and  they  proved  the  intellectual  inspiration  to 
Washington,  Madison,  Jay,  Hamilton  and  other  leaders  of  the 
day.  But  the  work  did  not  stop  there.  The  Wilson  spirit  lived 
on.  The  main  line  of  the  argument  in  Webster's  famous  reply 
to  Hayne  was  clearly  outlined  by  Wilson  nearly  a  half-century 
before,  and  it  was  the  backbone  of  the  argument  in  Andrew 
Jackson's  ringing  proclamation  of  December,  1832,  against  Nul 
lification,  and  of  his  powerful  message  of  January,  1833,  on  the 
same  subject.  Both  used  Wilson's  unanswerable  arguments,  and 
both  builded  upon  the  framework  of  his  logic. 

And  so  it  was  with  Marshall  in  those  great  decisions  which     ,/ 
are  the  imperishable  foundations  of  his  immortality  as  Chief 
Justice.     The   revered    Marshall's   glory,    as   the   greatest   ex- 


16  THE  KORTB  AMERICAN  REVIEW. 

pounder  of  the  issues  raised  under  the  Constitution,  dur 
ing  the  first  century  of  the  nation's  life,  can  never  pale; 
yet  he  was  bounded  and  restricted  by  the  limitations  of 
the  issues  before  him  for  adjudication.  lie  could  not  ex 
ceed  them,  and  research  is  showing  that  in  what  he  did  Marshall 
but  courageously  followed  in  the  footprints  of  Wilson,  who  broke 
the  trail  and  blazed  the  way  for  him,  "ploughing,"  as  has  been 
said,  "with  his  own  heifer" ;  and,  greater  than  expounder,  Wilson 
stands  as  a  creator — "the  real  founder  of  what  is  distinctive  in 
our  American  jurisprudence"  (Baldwin  supra). 

The  Constitution  marches  on;  new  conditions  and  new 
problems  are  pressing  for  solution.  Eventually,  they  must  be 
met  by  the  Supreme  Court  of  the  United  States.  The  Wilson 
doctrine  presents  the  key.  Its  essence,  as  well  as  its  logical 
sequence,  is  simply  this:  The  Constitution  should  be  so  construed 
that  there  shall  be  neither  vacancies  nor-  interferences  between 
the  limits  of  State  and  National  jurisdictions;  both  together 
should  compose  but  one  uniform  and  comprehensive  system 
of  government  and  laws.  The  evolution  of  our  national  life, 
the  onward  and  upward  "march  of  the  Constitution,"  Mar 
shall's  magic  wand  of  interpretation  and  Webster's  faultless 
logic — these  all  with  unerring  precision  illumine  Wilson's  tran 
scendent  grasp  of  the  fundamental  principles  of  our  dual  form  of 
government,  which  he  so  deftly  wove  into  the  matchless  fabric 
of  our  Constitution. 

This  is  neither  the  time  nor  the  place  for  a  technical  exposi 
tion  of  the  Wilson  doctrine.  A  brief  quotation,  however,  from 
Wilson's  long  and  able  argument  on  inherent  national  powers 
will  be  appropriate.  This  argument,  made  in  1785,  when  the 
United  States  was  under  the  Articles  of  Confederation,  is  even 
more  applicable  to  present-day  questions  under  the  Constitution : 

"  Hag  the  United  States  in  Congress  assembled  a  legal  and  constitu 
tional  power  to  institute  and  organize  the  Bank  of  North  America, 
by  charter  of  incorporation?  .... 

"  We  presume  it  will  not  be  contended  that  any  or  each  of  the  States 
could  exercise  any  power  or  act  of  sovereignty  extending  over  all  the 
other  States  or  any  of  them;  or,  in  other  words  incorporate  a  bank, 
commensurate  to  the  United  States.  .  .  . 

"  Though  the  United  States  in  Congress  assembled  derive  from  the 
particular  States  no  power,  jurisdiction,  or  right,  which  is  not  ex 
pressly  delegated  by  the  confederation,  it  does  not  thence  follow,  that 


JAMES  WILSON,  I'ATUIOT.  17 

the  United  States  in  Congress  have  no  other  powers,  jurisdiction,  or 
rights,  than  those  delegated  by  the  particular  States. 

"  The  United  States  have  general  rights,  general  powers,  and  general 
obligations,  not  derived  from  any  particular  States,  nor  from  all  the 
particular  States,  taken  separately;  but  resulting  from  the  union  of 
the  whole;  and,  therefore,  it  is  provided,  in  the  fifth  article  of  the 
confederation,  that  '  for  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  appointed ' 
'  to  meet  in  Congress.' 

"  To  many  purposes,  the  United  States  are  to  be  considered  as  one 
undivided,  independent  nation ;  and  as  possessed  of  all  the  rights,  powers 
and  properties  by  the  law  of  nations  incident  to  such.  Whenever  an 
object  occurs,  to  the  direction  of  which  no  particular  State  is  com 
petent,  the  management  of  it  must,  of  necessity,  belong  to  the  United 
States  in  Congress  assembled.  There  are  many  objects  of  this  extended 
nature." 

Here  Wilson's  brilliant  brain  crystallized  gems  of  logic  which 
have  ever  since  been  running  as  "the  dust  of  diamonds  in  the 
hour-glass"  of  our  national  jurisprudence. 

Yet  committees  of  the  Congress,  while  knowing  the  necessity 
for  sane  federal  action  concerning  some  of  the  corporations  en 
gaged  in  business  beyond  the  borders  of  the  State  of  domicile, 
whose  acts  thereby  extend  from  and  beyond  the  State  of  origin 
into  the  Nation  at  large,  deem  the  Congress  restricted  by  phases 
of  the  doctrine  of  State  rights;  and  even  judicial  committees, 
ignorant  of  the  spirit  of  the  Constitution  as  expounded  by  Wil 
son,  believe  the  legislative  branch  of  the  Government  paralyzed 
by  reason  of  the  judicial  development  of  a  dictum  which  crept 
into  a  decision  of  the  Supreme  Court,  to  the  effect  that  insurance 
is  not  a  subject  of  interstate  commerce,  wholly  ignoring  the  fact 
that  federal  control  may  be  sustained  on  far  broader  and  more 
fundamental  principles  of  constitutional  interpretation  than 
those  governing  the  mere  construction  of  the  interstate  commerce 
clause  of  the  Constitution. 

If,  however,  the  Supreme  Court,  by  a  failure,  at  times,  since 
the  days  of  Marshall,  to  take  a  comprehensive  view  of  the  effects 
of  certain  judicial  decisions — decisions  which,  without  unset 
tling  any  property  right  or  principle  of  law,  might  at  least  as 
logically  have  been  the  other  way;  such  as,  that  the  business  of 
insurance  conducted  throughout  the  United  States  is  not  inter 
state  commerce — if  the  Court,  as  a  result  of  this,  is  actually  permit 
ting  the  executive  and  legislative  departments  of  the  Government 


18  THE  NORTH  AMERICA*  REVIEW. 

to  be  handicapped,  then  may  the  spirit  of  James  Wilson,  its  first 
great  Justice,  and  that  of  Marshall,  descend  upon  the  Court  and 
at  once !  The  reviewer  here  speaks  as  one  of  the  sovereign  people, 
who,  while  under  the  Constitution,  are  yet  beliind  it,  and  by 
whose  sanction  alone  it  exists  in  its  present  form  or  any  form, 
and  who  in  the  last  analysis  possess  absolute  power  and  juris 
diction  to  reverse  even  the  Supreme  Court.  This  power  the 
people  have  already  once  exercised  by  an  explanatory  amend 
ment — the  eleventh  to  the  Constitution — reversing,  for  political 
reasons  in  1797,  one  of  the  points  decided  five  years  before  in 
Chisholm  versus  Georgia,  though  leaving  in  full  force  the  real 
value  to  the  nation  of  that  great  decision.  If  the  Supreme 
Court,  through  judicial  acquiescence  in  the  dictum  in  Paul 
versus  Virginia,  have  constructively  misconstrued  the  term 
"commerce,"  so  far  as  the  business  of  interstate  insurance  is 
concerned,  so  that  it  is  beyond  recall  by  their  own  act,  the  Con 
stitution  is  yet  equal  to  the  emergency — and  the  Court,  embody 
ing  the  highest  development  of  our  civilization,  will  also  be; 
for,  ere,  the  Constitution  left  the  skilled  hands  of  the  fathers, 
there  was  incorporated  in  it  the  provision  that  "The  Congress 
shall  have  power  to  .  .  .  provide  for  the  .  .  .  general  welfare 
of  the  United  States." 

In  recent  years  the  public  have  heard  much  of  the  interstate 
commerce  clause  of  the  Constitution,  but  very  little  of  the 
general  welfare  clause,  yet  it  is  the  blanket  provision  of 
the  Constitution,  and  it  is  a  power  which,  while  undoubt 
edly  an  inherent  national  power,  the  people  of  the  nation 
have  specifically  delegated  to  the  Federal  Government  by  the 
Constitution.  It  enunciates  in  explicit  terms  the  power  of  the 
Congress  to  exercise  this  the  highest  type  of  national  sov 
ereignty.  It  is  destined  in  the  centuries  yet  to  come  to  have  a 
vitally  important  place  in  our  jurisprudence.  It  is  capable  of 
an  infinite  adaptation  to  the  evolution  of  our  life  as  a  nation. 
Its  proper  application  will  make  impossible  either  vacancies  or 
interferences  between  State  and  National  jurisdictions.  Yet  it 
is  a  sharp-edged  and  dangerous  tool,  like  the  surgeon's  knife 
which,  in  skilled  hands,  deftly  wielded,  saves  life;  but  misused, 
takes  it.  It  awaits  the  deft  hand  of  the  second  Marshall.  He 
must  yet  arise,  to  declare,  with  the  same  keen  insight  and  the 
same  courage  as  the  first,  the  power  of  the  National  Government 


JAMES  WILSON,  PATRIOT.  19 

to  legislate  concerning  every  object  relating  to  the  general  wel 
fare  of  the  United  States  to  which  at  least  no  particular  State 
is  competent,  and  for  him  Wilson  has  cleared  the  path  and 
blazed  the  trail  as  he  did  for  the  great  Marshall.  Any  other 
theory  belies  the  spirit  of  our  institutions  and  declares  the 
"march  of  the  Constitution"  ended. 

And  of  Wilson*  himself !  No  one  who  realizes  his  great  crea 
tive  work  can  but  bow  in  deference  to  his  genius  and  the  mighty 
things  achieved.  What  tribute  of  love,  respect  and  venera 
tion,  however  great,  can  be  commensurate  with  Wilson's  labors 
for  the  nation  he  loved,  for  the  nation  he  helped  to  create  and  in 
whose  service  he  died?  Even  if  republics  have  been  ungrateful 
in  the  past,  shall  it  be  said  that  the  American  Republic  is  un 
grateful  to  such  an  one  as  Wilson?  Perchance  ere  many  years 
have  passed,  there  will  loom  in  bronze  within  the  shadow  of  the 
Capitol  at  Washington,  erected  by  "the  people  of  the  United 
States,"  the  giant  form  of  Wilson,  near  that  of  Marshall,  and  in 
his  hand  a  quill  and  scroll  with  "Constitution"  inscribed  there 
on — "Lest  we  forget,  lest  we  forget." 

LUCIEN  H.  ALEXANDER. 


*  James  Wilson  was  born  near  St.  Andrews,  Scotland,  September  14th, 
1742;  educated  at  the  Universities  of  St.  Andrews,  Glasgow  and  Edin 
burgh;  emigrated  to  America,  1765;  member  of  Continental  Congress; 
signer  of  Declaration  of  Independence ;  member  of  the  United  States  Con 
stitutional  Convention,  1787;  Justice  of  the  Supreme  Court  of  United 
States,  1789-1798;  died  at  Edenton,  North  Carolina,  August  21st,  1798. 


